Following please find the text of testimony given before the Kansas
House's Federal and State Affairs Committee's hearings on Governor
Finney's proposed iniative and referendum legislation. This testimony was
presented at 10:30 a.m. on Feb. 22nd, 1994.
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Testimony of Opposition to Initiative and Referendum
Scott Curry for Equality Kansas
February 22,1994
The organization I represent here today, Equality Kansas, has noticed an
alarming trend. There have been costly initiative and referendum votes
held throughout the Union to take away the fundamental constitutional
rights of minority citizens. In many places, the initiatives have succeeded.
In Colorado, the majority of those voting passed Amendment 2, which was
put forth to limit the constitutional rights of Gays and lesbians in
Colorado. There is a possibility it was passed because the populace
didn't understand the wording of the initiative. It was a basic "vote no
for yes, vote yes for no" amendment. Add to this that a media-blitz ad
campaign whipped to fever pitch the emotions of Colorado citizens, and it
is little wonder it passed.
As with many media political campaigns of late, much of the information
disseminated was stereotypical, hysterical, and simply untrue. There were
no mandatory forums held whereby the populace could gain access to the
information necessary to form an informed, educated decision on the
issue. The battle was waged through the media, and those with the most
money won. Terms were redefined. Equal rights, which supposedly belong
to everyone in our country, were re-labled "special rights," at least
when they related to Gay men and Lesbian women.
The minority voice didn't have the resources to counteract the media
images the opposition fed into the living rooms of the majority. As a
result, there was an uneducated, yet emotional, majority who was willing
to take away the fundamental constitutional rights of a minority. And
through a referendum and initiative procedure, they voted to do just this.
The Amendment has thus far proven to be unconstitutional. But the
spiritual and financial costs to the state have been staggering, and the
fallout has not yet cleared. Will the constitution be put to a vote
before the majority rule to make certain the rights of a minority are
destroyed? It's a very real possibility.
The majoritarian model of government assumes that citizens are
knowledgeable about government and politics, that they want to
participate in the political process, and that they make rational
decisions in their voting. The framers of our Constitution believed that
the majority has neither the time, nor the motivation, to truly educate
themselves on most issues. Their belief has proven true. In the United
States today, only 22 percent "follow what's going on most of the time"
in their government. Fully 40 percent said they followed politics "only
now or then" or "hardly at all."1 Furthermore, voter turn-out in
presidential elections has fallen to around one-half the eligible electorate.
Our founders further understood that because of this lack of fundamental
motivation and knowledge, there would be times when the emotions of a
majority would run high. They knew that during such times, intellect,
logical reasoning, and a full understanding of the issues would be lost.
James Madison, arguing for representational government, concluded, "...
that a pure democracy ... who assemble and administer the government in
person, can admit of no cure for the mischiefs of faction." He defined
faction as "a number of citizens...who are united and actuated by some
common impulse of passion ... adverse to the rights of other citizens
..." Madison, with foresight of an Amendment 2-type of situation,
continued to state, "A common passion or interest will, in almost every
case, be felt by a majority of the whole, and there is nothing to check
the inducements to sacrifice the weaker party. Hence it is that such
democracies have ever been spectacles of turbulence and contention ... "2
To counteract this, the framers built many frustrating, but necessary,
checks and balances into the constitution. The result is the
representational government we enjoy today. Critics state that this
representational government is elitist. It is not. It is pluralist. This
pluralistic method of government, the government I plead for, and the
government initiated by the framers of the constitution, allows for the
voice of the minority to be heard in a way that would be impossible under
a populist majoritarian model of government. My being here today is
proof of this. I am
allowed to be heard. Because of the checks and balances, I am able to
state my position clearly, with a certain degree of assuredness that
those voting on my future will hear me.
If our system of government was one of true democracy, rather than
representational democracy, my voice would not be heard. Under a system
where the majority votes on an issue, unless I have access to the money
necessary to appear on the media, my voice will not be heard. Because
most minorities do not have the resources necessary to be heard
under a majoritarian system, their voices will also be silenced.
As a gay man, who is in very real danger of losing his constitutionally
guaranteed equal rights, I speak today for the hundreds of thousands of
Kansans who are also gay men or lesbian women. I speak for members of
all minorities who ask, very simply, for access to our government.
And isn't that what initiatives and referendums are supposed to be
about? Access -- by the people, of the people, and for the people -- to
our government? I submit we have that now. I implore you, in the spirit
of justice and fairness, not to take away my right to be heard, through
the guise of providing me with access to my government.
++++FOOTNOTES+++++
1 M. Margaret Conway, Political Participation in the United States, 2nd
ed. (Washington, D.C.: Congressional Quarterly, 1991), p.44
2 James Madison, The Federalist, No. 10 (1787)